Tuesday, February 1st, 2005

District Court Erred in Considering “Ex Post Data” in Collateral Challenge to Deportation

In United States v. Scott, No. 04-937-cr (January 11, 2005), the Court considered several important questions relating to collateral challenges to the deportation underlying an illegal reentry prosecution.


Kevin Eric Scott had previously appealed the district court’s denial of his motion to dismiss the indictment, and the Court had remanded the case to the district court to consider the effect of United States v. Perez, 330 F.3d 97 (2d Cir. 2003), which was decided while Scott’s appeal was pending. On remand, the Scott again challenged his deportation, asserting that his immigration attorney’s failure to seek 212(c) relief amounted to a due process voilation. The district court rejected this argument, and again denied the motion to dismiss.

The Court’s Ruling

In this second appeal, the Court again held that, as in Perez, ineffective assistance of counsel at a deportation hearing could be the basis for a collateral challenge to the deportation. Here, as in Perez, counsel’s poor performance — he failed to file a 212(c) application after the immigraton judge ordrered him to do so — amounted to a fundamental procedural error.

The Court then concluded that Scott was prejudiced by his attorney’s ineffectiveness. First, and most significantly, the Court concluded that the district court had erred in considering “ex post data” — a conviction that occurred after the deportation hearing — in concluding that Scott would probably not have obtained 212(c) relief. After reviewing the relevant immigration and criminal precedents, the Court held that section “1326(d)’s prejudice inquiry does not extend byond the fairness of the deportation order itself. … [I]n assessing whether the defendant-alien had a reasonable probability of not being deported .. the district court should reconstruct events as they existed at the time of the disputed deportatoin proceeding, without consideing future occurrences.”

The Court concluded that, in the absence of the ex post data, Scott had a reasonable likelihood of receiving 212(c) relief in light of his family circumstances, employment history, long residence, and young age at arrival, factors that would have outweighed Scott’s four prior convictions.

The Court accordingly reversed the judgment of the district court and vacated Scott’s conviction.

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